111 Tenn. 134 | Tenn. | 1903
delivered the opinion of the Court.
As to the first assignment, it appears that the plaintiff was seriously sick with a contagious fever. There is some slight difference between the doctors as to whether it was miasmatic or typhoid fever, or both. This difference is much less marked than is usual among medical men in their diagnosis of disease and its character, and in this respect is rather remarkable; but all the physicians agree that the foul air and gases generated by rubbish dumped by the city’s agents into a manhole near plaintiff’s premises, and used by the city’s direction as a deposit for garbage, created a nuisance, and was sufficient to causé the sickness, and was its origin. The court charged the jury very plainly that they must
The evidence consists in the testimony of the physicians of plaintiff, who attended him in his sickness, and that of other physicians who visited the premises and examined them. It is, and from the nature of the case must be, a matter of expert opinion as to what is the cause or origin of disease, and the testimony of physicians is the most reliable evidence that can be had upon the subject. And while physicians may differ in their diagnosis of diseases, it is not a matter of great skill in many cases to determine the cause of sickness. We think there is an abundance of material and reliable evidence, upon which, the jury could base their verdict in this case, as to both the sickness and damage to plaintiff’s property as a home and residence.
The second assignment of error is the refusal of the trial judge to charge, substantially, that the operation of a sewer by a city is a governmental or legislative function and duty, and not one merely ministerial or corporate in its character. We think the law is well settled that a municipal corporation is not bound to build sewers, and is not responsible to a citizen for failing' to provide sewers for any part of its territory. To determine whether a sewer is necessary, and its location and general plan, by a corporation, is the exercise of a
The proof in this case shows that the city authorized and directed the deposit of this garbage in the sewer near plaintiff’s residence and that this created a nuisance caused the sickness and depreciation in property, and makes a case of liability against the city, even if the construction or providing of the sewer be held to be a legislative or governmental function. It was not error, therefore, to refuse the request offered.
The judgment of the court below is affirmed, with costs.